National Labor Relations Board v. Tennessee Coach Co.

• Decision Date: 09 July 1951
• Docket Number: No. 11238.,11238.
• Parties: NATIONAL LABOR RELATIONS BOARD v. TENNESSEE COACH CO.
• Court: U.S. Court of Appeals — Sixth Circuit

191 F.2d 546 (1951)

NATIONAL LABOR RELATIONS BOARD v. TENNESSEE COACH CO.

No. 11238.

United States Court of Appeals Sixth Circuit.

July 9, 1951.

Sidney Sherman, Washington, D. C. (George J. Bott, David P. Findling, A. Norman Somers, Frederick U. Reel, and Irving M. Herman, all of Washington, D. C., on the brief), for petitioner.

Charles D. Snepp, Knoxville, Tenn. (Charles D. Snepp, Knoxville, Tenn., on the brief; Anderson & Snepp, Knoxville, Tenn., of counsel), for respondent.

Before ALLEN, McALLISTER, and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

This is a petition of the National Labor Relations Board for enforcement of an order requiring the Tennessee Coach Company to reinstate an employee, Homer F. Fritts, on the ground that it was guilty of an unfair labor practice in discriminating against him through discharging him for the purpose of discouraging membership in a labor organization. Title 29 U.S.C.A. § 158(a)(3). The Board further ordered respondent to cease and desist from discouraging membership in any labor organization by discrimination as to hire or tenure of employment; from interrogating its employees as to union activities; from threatening to sell its operations in the event of union organization of its employees; from interfering with, restraining, or coercing its employees in any other manner in respect to their rights under Section 7 of the National Labor Relations Act, 29 U.S.C.A. § 157; and to post appropriate notices.

The Tennessee Coach Company, with its principal place of business in Knoxville, Tennessee, is a common carrier engaged in the transportation of passengers in the State of Tennessee, as well as in interstate commerce with Georgia, Virginia, and West Virginia. In December, 1946, the union in this case, Amalgamated Association of Street Electric Railway & Motor Coach Employees of America, Local Division 1423, affiliated with the American Federation of Labor, began organizing the company's drivers; and on September 1, 1947, commenced organizing its maintenance employees. Subsequently, several meetings were held by the representatives of the union and the company to discuss the appropriateness of the two separate unions, and, as a result of these conferences, on November 12, 1947, a consent election was agreed upon for a single system-wide unit of drivers and maintenance employees. Prior to the election and during October and November, 1947, the company discharged from its employment J. B. Arwood, Homer F. Fritts, W. M. Baker, and C. E. Dykes, all maintenance employees. Thereafter, on December 3, 1947, the union filed its original charge with the Board, claiming that respondent had discharged the aforesaid employees because of union activities, later amending its charge so as to eliminate employee Dykes from the charge.

Subsequently, on December 9, 10, 11, and 12, 1947, an election was conducted by the Board, with the result that 190 votes were cast against the union, and 67 votes in its favor. Neither party filed objections to the election, and on December 24, 1947, the union's petition for certification as bargaining agent was dismissed by the Board.

The trial examiner found that respondent was not guilty of any discrimination in discharging any of the three above mentioned employees. The Board found that two of the discharges were not discriminatory within the meaning of Section 8(a) (3) of the Act, 29 U.S.C.A. § 158(a)(3), but that the discharge of Fritts was discriminatory. Both the examiner and the Board agreed that the company had interfered with and coerced its employees in violation of Section 8(a)(1) of the Act, 29 U.S.C.A. § 158(a)(1).

Respondent contends that Fritts was properly discharged for cause; and that it was not guilty of any interference with or coercion of its employees in the exercise of their rights to self-organization, collective bargaining, and concerted activities for the purpose of such bargaining or other mutual aid or protection.

From the evidence, it appears that during the union's campaign to organize the employees, Fritts, during working hours, solicited Carl Horner and Norman Fred Kitts, two of respondent's employees, to join the union. These employees at the time were boys between 17 and 18 years old. Employee Dykes was engaged in the same solicitation. When the boys did not agree to join the union, Dykes told Horner that he ought to join then while he could make it easier for himself; that if he joined at that time, it would cost only $2.00, but that if he waited until they got organized, it would cost him $50.00; and that "If you don't join now, they will make it so hard on you you will have to join or quit work when they do organize it." Horner said he replied to Dykes that he "didn't think there was a closed shop in Tennessee," but that Dykes, in answer, stated that while there was not, at that time, "they were going to * * * put in some new laws to make a closed shop."

Horner also testified that Fritts came over to the place where he worked and told him "about the same as Dykes said. Told me if I didn't join it, it would make it hard on me"; that they would make it so hard on him he would have to go somewhere else to work; that he would have to quit or join the union; and that he would have twelve to sixty days to join; that Fritts made these threats to him while he was working in the course of his employment for respondent company; and that they interfered with his work because he would have to stop and listen to them. During the period Fritts was making these statements with regard to joining the union, Horner was working one night under one of the buses, when Fritts, operating another bus, let it "get away from him" and crashed into the one under which Horner was working, and, as Horner said, came very close to running over him. With reference to this incident, Fritts testified that Horner "didn't lack that much of getting killed (indicating)."

Kitts testified that while he was working one night at respondent's place of business, Fritts came up and asked him if he would join the union; that he told him no; that Fritts then told him that it would be best to join the union; that it would cost him less then than later; that Fritts would make it hard on him if he did not join; and that they would make it so hard on him he couldn't work there. Kitts replied that he would quit first. He testified that he reported Fritts' threats to employee Mallonee, a night shift foreman, and asked him whether he had to join the union, and that Mallonee told him he was free to join or not to join. Mallonee, in reply to a question as to whether Kitts and Horner showed any concern over the threats, testified that "they were scared their job would be no good if the union went through and that they couldn't do their work because the boys were talking to them about getting run off if they got the union in and they didn't join it; and they were young fellows and they didn't understand what it was all about." Mallonee further stated that he noticed that Kitts and Horner were being interfered with and that their work was not being done as efficiently as it had been before.

After Kitts and Horner had reported the foregoing statements and threats to their foreman, shop superintendent Davis called Fritts to his office; charged him with threatening the boys; and stated that he did not intend to stand for such conduct, and that the election for the union was going to be run fair and square. He further told Fritts that whether he belonged to the union or not, he was going to fire him for making those statements and threats to the boys.¹

The trial examiner made findings in accord with the above testimony; and the Board affirmed them except as to the conclusion that Fritts told the two boys that delay in joining the union would result in their being obliged to pay a much higher initiation fee. On this point, the Board said there was not sufficient evidence to support such finding. We are of the opinion that all the credible evidence does support this finding. In his findings, the trial examiner stated that because Kitts' testimony was at variance in several material aspects with a statement given by him to a field examiner of the Board, he placed no reliance on it, but based his findings on the testimony of Horner and Mallonee. The testimony of these two men would amply support the trial examiner's findings; but we do not see why Kitts' testimony should be rejected. The statement in question was prepared by a field examiner of the Board and presented to Kitts for his signature. He stated that he signed it without having read it through because he was in a hurry to join a friend who was waiting for him. His testimony contradicted the facts appearing in the statement; and he said that he did not know whether the statement set forth correctly what he told the field examiner. Apparently he did not read the statement through while on the witness stand. At that time, it was marked only for identification. The field examiner who prepared the statement was present at the hearing but did not testify. In view of these circumstances, the statement can not be considered as vitiating Kitts' undisputed testimony. On an examination of the record on this point, we find no reason to disregard this testimony, especially as it is corroborated in various details by the testimony of Horner, which was accepted by the trial examiner and the Board.

The Board, in reversing the finding of the trial examiner that respondent discharged Fritts for proper cause, accepted his finding that Fritts had made the threats against Horner and Kitts, but excused this conduct on the ground that Fritts had a reputation as a practical joker; that he talked quite a bit; that he was "pretty good about shooting the bull"; and that his statements were not coercive but "mere predictions of a fellow workman" which "merely reflect the usual enthusiasm of rank and file employees in...